Decamp et al v. State Farm Fire & Casualty Company

Filing 59

ORDER: Plaintiffs Christine and Constance Decamp's Daubert Motion to Exclude the Opinions of Kelly Gray, Esq. (Doc. # 46) is GRANTED in part and DENIED in part. The Motion is granted to the extent Ms. Gray may not offer legal conclusions or testify to the legal implications of conduct. The Motion is denied in all other respects. Signed by Judge Virginia M. Hernandez Covington on 9/7/2021. (DMD)

Case 8:20-cv-01747-VMC-TGW Document 59 Filed 09/07/21 Page 1 of 14 PageID 2806

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRISTINE DECAMP, as Guardian
of the Property of
Timothy Decamp, Jr. and
assignee of Jasmina Woltcheck,
and CONSTANCE DECAMP,
as Guardian of the Person
of Timothy Decamp, Jr.
and assignee of Jasmina Woltcheck,
Plaintiffs,
v.

Case No. 8:20-cv-1747-VMC-TGW

STATE FARM FIRE & CASUALTY
COMPANY,
Defendant.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Plaintiffs Christine and Constance Decamp’s Daubert Motion to
Exclude the Opinions of Kelly Gray, Esq. (Doc. # 46), filed
on August 9, 2021. Defendant State Farm Fire & Casualty
Company responded on August 23, 2021. (Doc # 52). For the
reasons that follow, the Motion is granted in part and denied
in part.
I.

Background
In this action, the Decamps, as Guardians for Timothy

Decamp, Jr., assert claims for common law bad faith, statutory

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bad faith, and unfair claim settlement practices against
State Farm. (Doc. # 1). The parties and the Court are familiar
with the facts of this case, as well as the underlying
litigation between the Decamps and State Farm’s insured,
Jasmina Woltcheck. Thus, the Court need not reiterate those
facts here.
This case has proceeded through discovery and State Farm
has moved for summary judgment. (Doc. # 45). In support of
its case, State Farm utilizes the opinions of Kelly Gray,
Esq. Gray is an attorney “licensed to practice law in the
State of Florida since 1993.” (Doc. # 46-1 at 66). “During
the past nearly twenty-eight years, [she has] focused [her]
practice on insurance coverage and extracontractual matters,
both as a litigation attorney and as a corporate claims
attorney. In addition, [she has] several years of experience
litigating
including

various

types

catastrophic

of

personal

automobile

injury

accidents,

matters,

construction

defect litigation, and professional liability.” (Id.).
In her report, Gray opines that, “under the totality of
the

circumstances,

State

Farm

has

met

its

fiduciary

obligations and complied with applicable industry standards
relative to the claims of Timothy DeCamp against Jasmina
Woltcheck.” (Id. at 80). Among other things, Gray concludes
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that “the State Farm policy clearly and unambiguously did not
obligate State Farm to pay for the Guardianship or the Special
Needs

Trust.”

(Id.

at

83).

Furthermore,

regarding

the

Decamps’ demand that State Farm pay for the legal and other
fees associated with the establishment of a guardianship and
special needs trust for Timothy Decamp, Gray states:
The industry standard is not now, nor has it ever
been, that a carrier must make extra contractual
payments over and above its purchased policy limits
to effectuate a settlement in order to be in good
faith. Such a standard would make a mockery of the
concepts of good and bad faith. Extra contractual
payment is due, by definition, when a carrier has
failed to act in good faith or, put another way,
has already acted in bad faith. They are payments
over and above the policy limits BECAUSE the
carrier failed to settle the claim at or within the
policy limits when it could and should have done
so. Thus, there must have first been an opportunity
to settle the claim at or within the policy limits
which the carrier failed to effectuate. There was
clearly never any such opportunity here. The file
materials establish that Attorney Leeper only ever
offered to accept the proactively tendered policy
limits if State Farm would also agree to pay extra
contractual amounts. Attorney Leeper and Christine
and Constance DeCamp have all testified that they
were never willing to accept the $50,000 policy
limits without more.
(Id. at 84). While Gray acknowledges that some insurance
companies have paid above the policy limits to establish
guardianship to effectuate a settlement, she maintains that
these past incidents do not “establish[] an industry standard
requiring a carrier to pay above and beyond its coverages to
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settle claims against its insured where the carrier’s claim
handling demonstrates good faith.” (Id.).
Now, the Decamps seek to exclude Gray’s testimony. (Doc.
# 46). State Farm has responded (Doc. # 52), and the Motion
is ripe for review.
II.

Discussion
Federal Rule of Evidence 702 states:
A witness who is qualified as an expert by
knowledge,
skill,
experience,
training,
or
education may testify in the form of an opinion or
otherwise
if:
(a)
the
expert’s
scientific,
technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to
determine a fact in issue; (b) the testimony is
based on sufficient facts or data; (c) the
testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied
the principles and methods to the facts of the case.

Fed. R. Evid. 702.
Implementing Rule 702, Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993), requires district courts to ensure
that any and all scientific testimony or evidence admitted is
both relevant and reliable. See Id. at 589–90. The Daubert
analysis also applies to non-scientific expert testimony.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
District courts must conduct this gatekeeping function “to
ensure that speculative, unreliable expert testimony does not
reach

the

jury

under

the

mantle
4

of

reliability

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accompanies

the

appellation

‘expert

testimony.’”

Rink

v.

Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005).
The Eleventh Circuit “requires trial courts acting as
gatekeepers to engage in a ‘rigorous three-part inquiry.’”
Hendrix v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir. 2010).
The district court must assess whether:
(1) the expert is qualified to testify competently
regarding the matters he intends to address; (2)
the methodology by which the expert reaches his
conclusions is sufficiently reliable as determined
by the sort of inquiry mandated in Daubert; and (3)
the testimony assists the trier of fact, through
the application of scientific, technical, or
specialized expertise, to understand the evidence
or to determine a fact in issue.
Id. The proponent of the expert testimony bears the burden of
showing,

by

a

preponderance

of

the

evidence,

that

the

testimony satisfies each of these requirements. Id.
1.

Qualifications

The first question under Daubert is whether the proposed
expert witness, Ms. Gray, is qualified to testify competently
regarding

the

matters

she

intends

to

address.

City

of

Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 563 (11th
Cir. 1998). An expert may be qualified “by knowledge, skill,
experience,

training,

or

education.”

Fed.

R.

Evid.

702.

“Determining whether a witness is qualified to testify as an
expert ‘requires the trial court to examine the credentials
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of the proposed expert in light of the subject matter of the
proposed testimony.’” Clena Invs., Inc. v. XL Specialty Ins.
Co., 280 F.R.D. 653, 661 (S.D. Fla. 2012)(quoting Jack v.
Glaxo Wellcome, Inc., 239 F. Supp. 2d 1308, 1314–16 (N.D. Ga.
2002)).
“This inquiry is not stringent, and so long as the expert
is

minimally

expert’s

qualified,

expertise

[go]

objections
to

to

credibility

the
and

level

of

the

weight,

not

admissibility.” Id. (citations and internal quotation marks
omitted). The Court is mindful that its “gatekeeper role under
Daubert ‘is not intended to supplant the adversary system or
the role of the jury.’” Maiz v. Virani, 253 F.3d 641, 666
(11th Cir. 2001)(quoting Allison v. McGhan, 184 F.3d 1300,
1311 (11th Cir. 1999)).
As the Decamps failed to arrange their Motion based on
the three Daubert requirements, it is difficult to determine
at times to which requirement their arguments are directed.
Regarding qualifications, the Decamps argue Gray should not
be permitted to testify because she “has not gained any
expertise concerning ‘friendly suits’ and/or an insurer’s
payment

of

guardianship

and/or

estate

proceedings

for

a

claimant in order to effectuate a settlement . . . through

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‘knowledge, skill, experience, training or education.’” (Doc.
# 46 at 11).
The
Gray’s

Court

rejects

the

qualifications.

Decamps’

Gray

has

arguments

regarding

twenty-eight

years

of

experience as an attorney dealing with insurance litigation
— four years of which were spent as the Director of Claim
Legal for Travelers of Florida and eight years as the Director
of Claim Legal for Direct General Insurance Company. (Doc. #
46-1 at 66-67). As a Director of Claim Legal, Gray “managed
extra-contractual

claims

and

litigation”

and

“was

also

responsible for the management of the company’s Major Case
Unit,

which

property

and

handled

the

casualty

most

claims;

complex
the

and

high

preparation

exposure
of

claim

handling guidelines; and the preparation and presentation of
training on claim handling and coverage issues.” (Id. at 67).
She has also “train[ed] claim professionals in the good faith
handling of insurance claims.” (Id.).
This experience renders her at least minimally qualified
to give opinions in this insurance bad faith case. The Motion
is denied as to qualifications.
2.

Reliability

The next question is whether Ms. Gray’s methodology is
reliable. “Exactly how reliability is evaluated may vary from
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case to case, but what remains constant is the requirement
that the trial judge evaluate the reliability of the testimony
before allowing its admission at trial.” United States v.
Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004)(citing Fed. R.
Evid. 702, Advisory Committee Notes (2000)). There are four
recognized, yet non-exhaustive, factors a district court may
consider in evaluating reliability:
(1) whether the expert’s methodology has been
tested or is capable of being tested; (2) whether
the technique has been subjected to peer review and
publication; (3) the known and potential error rate
of the methodology; and (4) whether the technique
has
been
generally
accepted
in
the
proper
scientific community.
Seamon v. Remington Arms Co., 813 F.3d 983, 988 (11th Cir.
2016)(citations omitted). A district court can take other
relevant

factors

into

account

as

well.

Id.

(citations

omitted).
“If the [expert] witness is relying solely or primarily
on

experience,

witness

must

then,”

explain

in
how

establishing
that

reliability,

experience

leads

to

“the
the

conclusion reached, why that experience is a sufficient basis
for the opinion, and how that experience is reliably applied
to

the

facts.”

Frazier,

387

F.3d

at

1261

(citation

and

internal quotation marks omitted). The Court’s analysis as to
reliability “focus[es] ‘solely on principles and methodology,
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not on the conclusions that they generate.’” Seamon, 813 F.3d
at 988 (citation omitted).
The Decamps argue that Gray’s opinions are unreliable.
According to them, Gray “may be reliable on other Florida bad
faith matters, but she is not reliable as an expert in this
lawsuit

on

the

custom

and

industry

practices

concerning

Florida insurers including State Farm paying or contributing
towards

‘friendly

suits’

or

otherwise

paying

for

or

contributing towards guardianship or estate proceedings for
minor,

incapacitated

adult

or

wrongful

death

claimants.”

(Doc. # 46 at 13). They emphasize that Gray has not handled
any insurance claims or “any personal injury cases involving
where an insurer paid or contributed towards guardianship or
estate proceedings for a claimant when she was employed at
private law firms as a plaintiff or defense attorney.” (Id.
at

11-12).

The

Decamps

also

take

issue

with

Gray’s

not

reviewing certain prior instances in which State Farm did pay
for guardianships. (Id. at 12).
The Court disagrees with the Decamps, especially as the
Decamps focus on Gray’s conclusions rather than her method of
reaching those conclusions. Gray’s testimony is sufficiently
reliable regarding industry standards for paying above and
beyond the policy limits to establish guardianships. See
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Trinidad v. Moore, No. 2:15-cv-323-WHA, 2017 WL 490350, at *2
(M.D.

Ala.

Feb.

6,

2017)(“Dillard’s

opinions

in

his

supplemental report, like his opinions in his earlier report,
are sufficiently reliable because they are based upon his
personal knowledge and experience.”). And Gray has reviewed
the record in this case in order to reach her conclusions.
(Doc. # 46-1 at 67-68); see also Dudash v. S.-Owners Ins.
Co., No. 8:16-cv-290-JDM-AEP, 2017 WL 1969671, at *3 (M.D.
Fla. May 12, 2017)(denying a Daubert motion to exclude Ms.
Gray and stating that, as “[h]er opinions were formulated
based on her review of the record,” the “argument that her
review is unreliable is unpersuasive”).
Any

alleged

flaws

in

Gray’s

methodology

should

be

addressed in cross-examination. See Maiz, 253 F.3d at 666
(“Vigorous

cross-examination,

presentation

of

contrary

evidence, and careful instruction on the burden of proof are
the

traditional

and

appropriate

means

of

attacking

[debatable] but admissible evidence.” (citations and internal
quotation marks omitted)).
Additionally,

the

Decamps

maintain

that

Gray

is

unreliable because she “merely parrot[s] State Farm and its
counsel’s legal position, with nothing more to add.” (Doc. #
46 at 14). The Court again disagrees. As State Farm chose her
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as its expert, it is no surprise that Gray’s opinions are in
State

Farm’s

favor

and

it

does

not

suggest

that

Gray’s

opinions are unreliable. Furthermore, Gray’s report provides
legitimate

expert

opinions

in

this

case,

regarding

what

insurance industry standards involve and whether State Farm
complied with those standards.
In short, Gray’s opinions, which are derived from her
long and relevant experience in the insurance and legal
industries, are reliable.
3.

Assistance to Trier of Fact

Expert testimony must also assist the trier of fact.
Fed. R. Evid. 702. “By this requirement, expert testimony is
admissible

if

it

concerns

matters

that

are

beyond

the

understanding of the average lay person.” Frazier, 387 F.3d
at 1262 (citation omitted). “[T]he court must ‘ensure that
the proposed expert testimony is “relevant to the task at
hand,” . . . i.e., that it logically advances a material
aspect of the proposing party’s case.’” Allison, 184 F.3d at
1312 (citation omitted).
So, while “[t]he ‘basic standard of relevance . . . is
a liberal one,’ Daubert, 509 U.S. at 587, . . .[,] if an
expert opinion does not have a ‘valid scientific connection
to the pertinent inquiry[,]’ it should be excluded because
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there is no ‘fit.’” Boca Raton Cmty. Hosp., Inc. v. Tenet
Health

Care

Corp.,

2009)(citations

582

omitted).

F.3d

1227,

“Proffered

1232
expert

(11th

Cir.

testimony

generally will not help the trier of fact when it offers
nothing more than what lawyers for the parties can argue in
closing arguments.” Frazier, 387 F.3d at 1262-63 (citation
omitted).
The Decamps argue that Gray’s opinion that payment of
the guardianship and special needs trust fees was not required
by the terms of the insurance policy is an unhelpful and
inadmissible legal conclusion that “usurp[s] this Court’s
authority to construe the insurance contract.” (Doc. # 46 at
8). “No witness may offer legal conclusions or testify to the
legal implications of conduct.” Dudash, 2017 WL 1969671, at
*2.
The Court agrees that Gray may not opine as to whether
payment of guardianship and special needs trust fees was
required under the terms of the insurance policy. Nor may she
provide other legal conclusions, such as what legal duties
existed for State Farm. In recognition of the prohibition on
legal conclusions, State Farm concedes that it is not asking
Gray to offer “expert opinions concerning the interpretation
of the insurance policy, the legal duties owed by an insurer,
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or the mental state or credibility of any witness.” (Doc. #
52 at 2).
Having determined that Gray may not offer such legal
conclusions, the Court clarifies that not all of Gray’s
opinions should be excluded. Gray’s testimony will be helpful
to the jury regarding the standards and practices of the
insurance industry and whether State Farm complied with such
standards. See Pacinelli v. Carnival Corp., No. 18-22731-CivWILLIAMS/TORRES, 2019 WL 3252133, at *6 (S.D. Fla. July 19,
2019)(finding expert testimony on certain industry standards
helpful as they were “beyond the common knowledge of the
average [layperson]”); see also Maharaj v. GEICO Cas. Co.,
No. 12-80582-CIV, 2015 WL 11279830, at *6 (S.D. Fla. Mar. 12,
2015)(“The

Court

finds

that

opinion

testimony

from

a

qualified witness as to the claims handling standards within
the

insurance

industry,

and

whether

or

not

Defendant’s

actions met those standards, will help the jury understand
the evidence and determine a fact in issue. The jury does
not, however, need any assistance in applying the law to this
testimony and making a factual determination as to whether or
not GEICO acted in ‘bad faith.’”). This is the case even
regarding Gray’s opinion that State Farm exceeded industry

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standards in certain respects. (Doc. # 46-1 at 81-82, 85).
Thus, Gray may testify as to those matters.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
Plaintiffs

Christine

and

Constance

Decamp’s

Daubert

Motion to Exclude the Opinions of Kelly Gray, Esq. (Doc. #
46) is GRANTED in part and DENIED in part. The Motion is
granted to the extent Ms. Gray may not offer legal conclusions
or testify to the legal implications of conduct. The Motion
is denied in all other respects.
DONE and ORDERED in Chambers in Tampa, Florida, this 7th
day of September, 2021.

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